Citation Nr: 0429128
Decision Date: 10/22/04 Archive Date: 11/08/04
DOCKET NO. 96-42 208A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for bronchitis.
2. Entitlement to service connection for a vision
disability.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
K. Clarkson, Counsel
INTRODUCTION
The veteran served on active duty from November 1969 to
August 1971.
This matter comes to the Board of Veterans' Appeals (Board)
from a July 1996 decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Houston, Texas. Due to
the veteran's change in residence, the case was transferred
to the RO in Waco, Texas, which now has jurisdiction.
The Board remanded this case in May 2004 in view of the
veteran's request for a videoconference hearing before a
Veterans Law Judge. The hearing was conducted by the
undersigned Veterans Law Judge in July 2004. A transcript of
the hearing is associated with the claims file.
The issue of service connection for a vision disorder is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDING OF FACT
There is competent medical evidence demonstrating the onset
of the veteran's bronchitis during his active period of
service.
CONCLUSION OF LAW
Service connection is warranted for bronchitis. 38 U.S.C.A.
§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service Connection for Bronchitis
The Board has considered the veteran's claim of entitlement
to service connection for bronchitis with respect to the
Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100
et. seq. (West 2002). Given the favorable outcome set forth
below, no conceivable prejudice to the veteran could result
from this adjudication. See Bernard v. Brown, 4 Vet. App.
384, 393 (1993). Thus, the additional delay in the
adjudication of these issues, which would result from a
remand solely to allow the RO to apply the VCAA, would not be
justified. In other words, the veteran will not be
prejudiced by the Board proceeding to a decision in this
matter since the outcome represents a full grant of the
benefits.
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a)
(2004). For the showing of chronic disease in service, there
is required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b) (2004). Service connection may be also granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R.
§ 3.303(d) (2004).
Service connection connotes many factors, but basically, it
means that the facts, as shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service. A determination of service
connection requires a finding of the existence of a current
disability and a determination of a relationship between that
disability and an injury or disease in service. See Pond v.
West, 12 Vet. App. 341 (1999); Watson v. Brown, 4 Vet. App.
309, 314 (1993).
Here, the veteran has testified that he did not have any
allergies or respiratory disorders prior to his entry into
service, and that he developed problems following an exercise
in a gas chamber in which he was exposed to chemicals. The
service records do not include any references to a gas
chamber. Therefore, even though there is no documentation
regarding a gas chamber exercise, the veteran's testimony is
sufficient to show that he did participate in a gas chamber
exercise. Grottveit v. Brown, 5 Vet. App. 91 (1993).
However, the veteran is not competent to state the type of
chemicals, if any, he was exposed to in the gas chamber
exercise.
The entrance examination and medical history reports
completed in October 1969, are negative for complaints or
diagnoses of respiratory disorders. Further, the service
records show that the veteran was treated for bronchitis in
1969, 1970 and 1971. Therefore, the medical evidence does
support that the condition became manifest during his active
period of service.
The examination of the lung and chest was normal at the time
of the veteran's separation examination of June 1971.
However, the post-service records reflect ongoing problems
with bronchitis. For instance, the veteran was treated for
bronchitis in May and August 1979, September 1981, November
1988 and January 1997. Further, a history of chronic
bronchitis was noted on the September 1981 visit and when the
veteran underwent a VA examination in May 1997. The records
clearly show ongoing problems with bronchitis since service.
In May 1997, the veteran reported that he had noticed the
occurrence of a cough two to four times a year when the
weather changes. Regarding a connection between exposure to
chemicals in a gas chamber and bronchitis, the examiner
pointed out that the history indicates a component of
environmental allergies, consistent with problems related to
seasonal changes. The examiner also indicated that
references for such a chemical could not be found. The
examiner found that based on the available history, it
appeared that the veteran's respiratory condition may have
been unmasked by the experience in the gas chamber, but not
caused by any exposure to chemicals. The examiner commented
that exposure related illness is generally present with
exposure to the offending agent, or when permanent
significant damage is done would cause chronic rather than
intermittent problems as the veteran described.
As discussed, the veteran's testimony is sufficient to show
that he participated in an exercise in a gas chamber, and the
medical evidence demonstrates chronic bronchitis during and
after service. Although the examiner did not relate the
veteran's bronchitis to the particular inservice activity
described by the veteran, the examiner did find that the
experience "unmasked" the condition. The examiner also
concluded that there was an environmental allergy component
to the veteran's condition. Overall, the examiner's comments
and opinions strongly suggest that the onset of the condition
dates back to the veteran's active period of service, even
though it is not specifically related to the gas chamber
exercise. Therefore, the evidence is in relative equipoise,
therefore the benefit of the doubt as contemplated by 38
U.S.C.A. § 5107 applies in this instance. Service connection
for bronchitis is warranted.
Resolving doubt in the veteran's favor, the Board finds that
the evidence presented demonstrates that the criteria to
establish a claim of entitlement to service connection for
bronchitis have been met, the appeal is granted.
ORDER
Entitlement to service connection for bronchitis is granted.
REMAND
Defective vision and an E2 physical profile rating were
reported on the entrance examination of October 1969.
Defective vision was also noted at the time of the separation
examination in June 1971. The veteran has reported injuries
to his eyes during service.
At an April 1997 VA examination, the examiner diagnosed poor
near vision due to insipient presbyopia and visual field
loss. The examiner also referred to the veteran's reported
history of an injury incurred in an automobile accident in
1971. However, a nexus opinion was not provided. This was
pointed out in a December 1997 note to the file, but it does
not appear that the opinion was eventually obtained.
Therefore, one should be secured.
To ensure that the VA has met its duty to assist the claimant
in developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED for the following development:
1. The AMC must review the claims file
and ensure that all VCAA notice
obligations have been satisfied in
accordance with 38 U.S.C.A. §§ 5102,
5103, and 5103A (West 2002), and any
other applicable legal precedent. The
notice must inform the veteran (1) of the
information and evidence not of record
that is necessary to substantiate the
claim, (2) of the information and
evidence that VA will seek to provide,
(3) of the information and evidence that
the veteran is expected to provide and
(4) request that the veteran provide any
evidence in his possession that pertains
to the claim. He must also be informed
of the appropriate time limitation within
which to submit any evidence or
information. 38 U.S.C.A. § 5103(a) and
(b) (West 2002); 38 C.F.R. § 3.159(b)
(2004); Quartuccio v. Principi, 16 Vet.
App. 183 (2002); Veterans Benefits Act of
2003, Pub. L. No. 108-183, § 707(a), (b),
117 Stat. 2651 (2003) (to be codified at
38 U.S.C. §§ 5109B, 7112). A record of
his notification must be incorporated
into the claims file.
2. The AMC should forward the claims
folder to the examiner who conducted the
April 1997 VA examination. The examiner
must provide an addendum to the report
that offers a nexus opinion as to the
diagnosed conditions, including visual
field loss, to the veteran's service. A
complete rationale for all opinions
expressed must be provided. If the
examiner finds that an examination is
necessary, or if the examiner who
conducted the examination in April 1997
is not available to offer such a nexus
opinion, then the veteran must be
afforded a VA examination. All necessary
special studies or tests should be
accomplished. The claims folder must be
made available to the examiner for review
in conjunction with the examination, and
the examiner should acknowledge such
review in the examination report. The
examination report should be typed.
3. The veteran is hereby notified that
it is his responsibility to report for
all examinations, to cooperate in the
development of the claim, and that the
consequences for failure to report for a
VA examination without good cause may
include denial of the claim. 38 C.F.R.
§§ 3.158, 3.655 (2004). In the event
that the veteran does not report for the
aforementioned examination, documentation
should be obtained which shows that
notice scheduling the examination was
sent to the last known address. It
should also be indicated whether any
notice that was sent was returned as
undeliverable.
4. The AMC should adjudicate the claim
of entitlement to service connection for
a vision disorder. If the determination
remains adverse to the veteran, he
should be provided a supplemental
statement of the case that includes a
summary of additional evidence
submitted, any additional applicable
laws and regulations, and the reasons
for the decision. The veteran and his
representative should be afforded the
applicable time to respond.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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